Washington v. United States

• Decision Date: 31 January 1968
• Docket Number: No. 20267.,20267.
• Citation: 130 US App. DC 374,401 F.2d 915
• Parties: Junius S. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 374, 401 F.2d 915 (1968)

Junius S. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.

No. 20267.

United States Court of Appeals District of Columbia Circuit.

Argued June 30, 1967.

Decided January 31, 1968.

Petition for Rehearing Denied April 26, 1968.

Mr. T. Emmett McKenzie, Washington, D. C., for appellant.

Mr. Robert S. Brady, Sp. Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and David N. Ellenhorn, Asst. U. S. Attys., were on the brief, for appellee.

Before TAMM and ROBINSON, Circuit Judges, and DAVIS,^* Judge, United States Court of Claims.

Petition for Rehearing En Banc Denied April 26, 1968.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

From a parked position at the curb of a public street, appellant drove his automobile in a U-turn directly in front of another car, forcing the driver of the latter to apply his brakes abruptly to avoid a collision. A police officer, who had observed the maneuver, signaled appellant to a stop and asked for his operator's license. Appellant produced the license and the officer, after examining it, requested the registration card for the vehicle. Appellant, ostensibly in response, opened the glove compartment, and from it fell three envelopes. The officer recognized the envelopes as of a type used in numbers operations, and saw figures written on the outside of them. On inquiry as to what they were, appellant admitted that they contained numbers matter and money. Thereupon, the officer told appellant that he was under arrest and ordered him to get out of the car. He was searched immediately, and numbers slips and money were found in a pocket of his trousers. A bag containing still more slips and money was then found under the front seat of the car.¹

Now convicted by a jury of two violations of the lottery laws,² appellant presses three points on this appeal. One³ pertains to the denial, by District Judge Walsh, of his pre trial motion to suppress the numbers items and money,⁴ some of which were introduced into evidence at the trial.⁵ The other two⁶ emanate from events at the trial, before District Judge Corcoran, now to be related.

On cross-examination of a Government witness, appellant's counsel had an exhibit marked for identification, whereupon the following occurred:

"Q. Now, sir, that document you have in front of you, that newspaper advertisement, that has on it a list of automobile tag numbers, does it not?

"A. That is correct.

"Q. And it has the statement that if you come to the Buick automobile company and your car has the tag matching one of the numbers on that list, that you will win a prize; is that true?

"A. That is correct.

"Q. Now, that piece of paper, sir, that identifies the person who is going to be a winner, does it not? There can be no speculation or doubt about it, can there?

"A. It identifies them by tag number.

"Q. That is right. Everybody knows that whoever has one of those tag numbers is going to win something, is that correct?

"A. That is correct.

"Q. * * * Have you had any occasion to investigate that proposition?

"A. This particular one?

"Q. Yes.

"A. No."

Defense counsel then proceeded to have another exhibit marked and, as he was apparently about to resume cross-examination, Judge Corcoran, at a bench conference, inquired as to his purpose. Counsel responded:

"* * * I want to introduce this in evidence. These represent chances on a lottery. On the basis of that, I am going to ask that this statute be declared unconstitutional. It doesn\'t afford equal protection of the law to my client. I am going to interpose that as a defense under the rules of procedure. * * *"

Then asked by the judge as to the materiality of the first exhibit, counsel explained that "it is a lottery and it exists. The law doesn't apply to those people the same way as it does to my client." Counsel then stated that he had

"* * * 40 or 50 similar exhibits which I contend will prove the existence of other lotteries in this town which are not made subject to the provisions of the statute; therefore, we should have equal protection of the law."

The judge refused, on the ground of irrelevance, to admit any of the exhibits into evidence.

Our review of appellant's contentions leads to the conclusion that neither affords an acceptable basis for reversal. We therefore affirm, but respond to a need for explication of our reasons for doing so.

I

At the trial, appellant did not renew his motion to suppress,⁷ and the Government was permitted to introduce into evidence the numbers items and money which appellant had secreted in his glove compartment and his pocket.⁸ The motion, however, preserved for appellate review the objection to prosecutorial use of these materials,⁹ so we are brought to a consideration of a single aspect of Judge Walsh's pretrial determination which appellant focuses on here.

At the core of Judge Walsh's ruling was his initial holding that appellant came under arrest for the traffic violation when his car was stopped, although the officer did not proclaim an arrest until after he had seen the telltale envelopes.¹⁰ The officer's "inspection" of the glove compartment as it was opened¹¹ was treated as a search incidental to that arrest,¹² and the subsequent searches of appellant's person and his automobile as reasonable concomitants of an arrest for the lottery offenses.¹³

Appellant attacks the judge's legal conclusion that the halting of his automobile constituted the act of arrest, pointing to the officer's testimony, and the concordant finding, that no arrest was announced until after the envelopes appellant spilled from the glove compartment were recognized as numbers paraphernalia. He urges us to hold that as a matter of law an unlawful search of the compartment preceded the arrest which the officer effected.

Our appraisal of appellant's thesis begins with close scrutiny of the salient factual findings which Judge Walsh's opinion incorporates. After witnessing appellant's U-turn and his near-collision with the oncoming automobile, the officer "flagged him to a stop, * * * stepped up to the defendant's car, identified himself as a police officer, advised defendant of the traffic violation, and asked for his driver's license."¹⁴ After checking the license, the officer twice requested the registration card, and in response appellant entered the glove compartment from which the envelopes fell, exposed plainly to the officer's gaze.¹⁵

Save in one ill-founded respect,¹⁶ appellant does not challenge these findings, or suggest that the evidence before the judge was insufficient to support them. On the contrary, both the brief¹⁷ and the oral argument¹⁸ presented in appellant's behalf assure us that his claim of illegal arrest accepts the validity of the findings.¹⁹ We do not, on the facts found, reach the question whether appellant was actually under arrest at the time the condemnatory envelopes came to light or encounter the myriad difficulties that searches accompanying traffic arrests are apt to involve.²⁰

The events leading to discovery of the envelopes occurred after the officer had witnessed appellant's operation of his automobile in clear violation of law,²¹ and we think that the officer was justified in detaining appellant temporarily for a purpose congenial to that occasion.²² In our view, the stopping of an observed traffic offender and an inspection of his credentials to operate the vehicle under his control is not only a commonplace but also a reasonable police procedure.²³ Nothing in the record intimates that appellant's detention grew out of any other purpose, or that it was a subterfuge for a hunt for lottery material.²⁴

It was during this investigative pause that appellant, having been asked to exhibit the registration card, opened the glove compartment to obtain it. The officer's observation of the envelopes that then fell from the compartment into his view did not, in our judgment involve a search.²⁵ Indeed, we are unable to distinguish this episode from that involving another appellant who, reaching into his pocket for his registration card, which in similar circumstances a police officer had requested, inadvertently uncovered a concealed weapon.²⁶ And with no search, it is quite immaterial that this unimpeachable detention of appellant did not amount to an arrest.²⁷

We conclude that the seizure of the numbers paraphernalia which had resided in the glove compartment is without constitutional implication. With that discovery, the officer had probable cause for the ensuing formally-announced arrest for the numbers offenses,²⁸ and the search of appellant's person immediately after that lawful arrest was itself lawful.²⁹ We hold that the Government was at liberty to utilize as evidence at the trial, the numbers items and money appellant had in the glove compartment and in the pocket of his trousers.³⁰

II

We proceed now to a consideration of the ruling made by Judge Corcoran at the trial excluding appellant's exhibits from the evidence. In this connection, appellant presents two contentions, only one of which — his equal protection claim — merits elaboration.³¹

We are not entirely clear as to the approach by which appellant would endeavor to make this point. At trial it apparently was that the lottery statutes do not cover certain activities which amount to lotteries. On the other hand, his position here seems to also embrace the claim that other persons violate the statute but are not prosecuted.³² Since we are uncertain in this regard, our discussion extends to both facets of the problem, which we considered in reaching our conclusions in this case.³³

Appellant's invocation of "equal protection of the law" is obviously a reference to the Equal Protection Clause of the Fourteenth Amendment,³⁴ which effects a prohibition only on the states.³⁵ And while the Fifth Amendment, applicable to the Federal Government, exacts due process of law, as the Fourteenth demands...